Decision To Rush Vote On Ambush Elections Brings NLRB Under Fire

The two-member Democratic majority of the National Labor Relations Board (NLRB) has come under fire for a decision to schedule a Nov. 30 vote on a proposal that could dramatically shorten the length of time between when a petition is filed and a union election takes place. NLRB Member Brian Hayes, ABC and U.S. House of Representatives Education and the Workforce Committee Chairman John Kline (R – Minn.) have publicly criticized the move.

The vote will pertain to certain parts of a June 2011 proposed rule that would reduce the amount of time between when a petition is filed and the union election takes place to as few as 10 days. The proposal has been extremely contentious and has garnered nearly 66,000 comments from the public. ABC opposes such “ambush” elections because they would significantly impede an employer’s ability to educate employees about the pros and cons of union representation.

The NLRB has not released information on which specific parts of the proposed rule will be voted on, but NLRB Member Brian Hayes wrote in a letter (PDF) that he suspects the final rule will resemble the proposed rule.

The decision to hold the vote by the end of the month was made by NLRB Member Craig Becker and Chairman Mark Pearce. Becker and Pearce represent a two-member majority on the NLRB and want to rush the rule through the process because Becker’s recess appointment will expire at the end of the year. At that time, the board will only have two members and will not be able to issue decisions.

In an attempt to get the proposed rule finalized before Becker’s term expires, the NLRB’s majority members have taken alarming steps to expedite the process. In a letter submitted to Kline on Nov. 10 (PDF), a majority spokesperson omitted any mention of the board’s timeline for finalizing the proposed rule. However, Hayes followed up with a Nov. 18 letter to Kline stating the board majority did have a timeline for finalization and that he declined to approve the Nov. 10 letter because of the deliberate omission.

In addition, Hayes wrote in his letter that on Nov. 15 Becker and Pearce offered him a “compromise” version of the proposed rule and told him he could “take it or leave it.” As part of the deal, Hayes would have had to submit to an unprecedented “emergency” revision of the ordinary rules for processing pending cases until the end of Becker’s term. The “emergency” revision would have deprived him of any meaningful opportunity to provide a response to the majority decision. Hayes was the sole dissenting opinion when the proposed rule was issued in June.

“This process, or, more accurately, lack of process, is so diametrically at odds with traditional decisional processes of the Board that it quite frankly defies description,” Hayes wrote.

Hayes went on to say his colleagues on the board were “drafting a final rule with responses to comments filed without [his] participation or input.” Hayes also expressed concern over the decision by Becker and Pearce to ignore a practice that has been in place for decades preventing the NLRB from overruling existing law without the agreement of at least three of the board members, regardless of how many members were currently sitting on the board.

ABC Vice President of Federal Affairs Geoff Burr echoed Hayes’ concerns in a statement issued on Nov. 21, saying Becker and Pearce have effectively squashed any dissenting argument and have “hijacked the agency to attain their partisan-political purposes.

“In the end, it will be the workers who suffer when they are denied the opportunity to make a fully informed decision about union representation,” Burr said.

Under the Workforce Democracy and Fairness Act, employers would have at least 14 days to prepare for a union election hearing. In addition, this bill would reinstate the traditional standard for determining the appropriateness of a bargaining unit and allow workers to determine how they wish to be contacted by the union.

H.R. 3094 is expected to come up for a vote in the House after Thanksgiving.